IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150001679 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel states that the applicant's claim and appeals for Traumatic Servicemembers Group Life Insurance (TSGLI) have all been denied. These findings are not consistent with the statements and medical reports submitted. As such, the decisions are in error and an injustice. It is requested that the denial of benefits be reversed and the applicant be allowed to receive TSGLI benefits. 2. Counsel states the denial of the applicant's TSGLI claim is unjustified in light of statements and evidence in the medical records. A few notes showing minimal pain cannot overshadow the statements and records demonstrating the applicant required assistance to perform at least two of his activities of daily living over 30 days. The statements and medical records have been ignored or unjustifiably discounted in light of minor mentions in his medical records that may be to the contrary, which make the finding an injustice and or error. 3. Counsel provides approximately 480 pages of documents related to the applicant's TSGLI claim and appeals. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U. S. Army Reserve (USAR) on 11 February 1994. He reenlisted in the USAR on 8 February 2002 and 9 February 2005. 2. He was ordered to active duty as a member of his USAR unit effective 13 April 2012 in support of Operation New Dawn. 3. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 March 2013, shows, in effect: a. The applicant had been examined at Darnall Army Medical Center, Fort Hood, TX, on 20 February 2013 due to the malunion of fractured sternum xiphoid process. b. The applicant was hit in the sternum with the butt of a rifle in April 2012. He has been in pain since that time. He has had six steroid shots so far. They helped for a while but became less effective over time. He was pending surgery in San Antonio, TX. 4. In the applicant's application for TSGLI benefits, dated 8 April 2013, he stated that he was injured on 20 April 2012 while training in preparation for deployment to Afghanistan. a. He fell and broke the fall with his weapon. The force of the weapon struck him in the center of his sternum and caused a fractured sternum injury that dislocated his xiphoid process and created a non-union between his xiphoid process and his sternum. Initially the sick call doctor thought he had a bruise and sprain. As the pain continued, an x-ray was ordered and it was inconclusive. Due to the protruding knot in his sternum and the chronic pain, he was forced to limit his mobility to the area and he had several rounds of steroid injections. b. In December 2012, he was fitted for a full upper-body corset and ordered not to bend, climb, crawl, crouch, jump, lift/lower/carry, push/pull, run, twist or reach above his shoulders. He was also on a profile from 4 December 2012 to 8 April 2013. The purpose of limiting his activities was to allow his fractured sternum to heal. During that period, his activities of daily living were significantly impacted as he required help getting dressed and bathing. c. For over 4 months he required his spouse or others to assist with putting on his shoes, washing his back and hair or any other basic activity that required bending, twisting or reaching above his shoulders. d. He was admitted to the emergency room at 0730 on 6 March 2013 for severe pain from the trauma caused by the fractured sternum. A magnetic resonance imaging revealed that a residual pointed bone chip from his fracture was stabbing through his stomach sheath and surgery was performed to repair the bone structure to his sternum and excision of his xiphoid. On 8 March 2013, he was discharged in a wheelchair accompanied by his spouse to provide his care. He was placed on 30 days of convalescent leave in order for his spouse to assist with his recovery and activities of daily living. 5. The Medical Professional's Statement accompanying his 8 April 2013 TSGLI application indicates the applicant suffered qualifying losses as follows: a. Unable to bathe independently. Per military profile he could not twist to wash his back or reach above his shoulders to wash his face nor hair due to the fracture. He was also discharged to his spouse's care. b. Unable to dress independently. Per doctor's orders and a military profile he could not bend to put on socks and shoes while waiting for the fracture to heal. His medical records also indicate he was in a body corset. c. Unable to toilet independently. He states he was required to use a bedpan at night and needed assistance getting out of his chair/bed to go to the toilet during hospitalization and for at least two weeks after surgery. Unable to verify. d. The Medical Professional's Comments show: PT followed up with me regarding the scar tissue and tenderness of his incision post surgery. After a review of the PT's Line of Duty Statement for a fractured sternum and malunion of his xiphoid process, previous military profiles, and associated medical records including surgeons notes I concluded this injury and trauma to this sternum significantly limited his activities of daily living (ADL) for an extended period of time as described above. 6. His application for TSGLI benefits was denied on 26 June 2013 because the medical documentation submitted did not indicate his loss met the TSGLI standard. The evidence indicated his hospitalization was not 15 days in length. 7. The applicant's counsel submitted an appeal dated 15 October 2013. Statements from the applicant and the applicant's spouse were included along with supporting documentation that counsel stated demonstrated that the severe and traumatic injury suffered by the applicant led to a loss of ADLs for over 120 days from 4 December 2012 until 8 April 2013. a. The applicant stated in his 15 October 2013 declaration that: (1) He required physical and standby assistance with the loss of 2 ADLs after he suffered a fractured sternum and dislocated xiphiod process on 20 April 2012. (2) From 4 December 2012 until 8 April 2013 he required constant assistance from his wife to perform regular ADLs, including physical assistance with bathing and physical and standby assistance getting dressed. (3) From 4 December 2012 until 8 April 2013, he needed physical assistance to get into and out of the tub. He could not wash his hair, face, back, or feet as he was unable to bend or lift his arms above his shoulders. His wife bathed him. He was unable to bathe himself without assistance. (4) From 4 December 2012 until 8 April 2013 he required physical assistance with dressing each day because he was unable to put on any of his clothes himself. b. The applicant's spouse stated in her 14 October 2013 declaration that: (1) The applicant required physical and standby assistance with two ADLs after he suffered a fractured sternum and dislocated xiphiod process on 20 April 2012. (2) From 4 December 2012 until 8 April 2013 she was required to provide him physical assistance with bathing and physical and standby assistance to get him dressed. (3) She provided physical assistance for over 120 days to help him bathe. He needed help getting in and out of the tub. He could not wash his hair, face, back, or feet as he was unable to bend, twist, or lift his arms above his shoulders. She also bathed him because he was unable to bathe himself without her assistance. (4) She provided physical assistance to dress the applicant from 4 December 2012 until 8 April 2013 because he was unable to put on any clothing by himself. 8. A 31 March 2014 letter from the Special Compensation Branch, HRC, notified the applicant and his counsel that the appeal had been denied because the documentation submitted did not indicate he met the TSGLI standards for loss of ADLs. The medical documentation submitted did not indicate that the applicant's injury rendered him incapable of performing the ADLs of bathing, dressing, toileting, or transferring for 30 consecutive days or greater. If the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measure (such as, cane crutches, wheelchair, etc.) then the Soldier is considered able to independently perform the activity. 9. The applicants' counsel submitted another appeal dated 16 May 2014. Counsel stated that following the applicant's 6 March 2013 surgery he was discharged home to the care of his spouse and she assisted him performing ADLs. New declarations were submitted from the applicant and his spouse along with a review of the applicant's medical records by T____ B____, an independent registered nurse. a. In his 15 May 2014 declaration the applicant stated that: (1) Following his surgery he was discharged in the care of his spouse. She helped him with bathing and dressing for over a month. Even though his problem was fixed with the surgery, he needed help with most ADLs. His spouse helped him get in and out of the bathtub and shower. She washed him where he could not reach because he could not bend over or twist. (2) He was sent to Houston, Texas, after his surgery and his spouse drove him back to Fort Hood where she took care of him when he was on 30 days of convalescent leave. (3) It should be noted he was issued no adaptive equipment and without the help of his spouse he could not have perform the ADLs on his own. b. In her 15 May 20-14 declaration, his spouse stated: (1) The applicant was discharged from the hospital into her care on 6 March 2013. She assisted him with bathing and dressing on a daily basis for over a month while he was on convalescent leave. His physical activity was very minimal and he was in very poor physical condition. (2) There were times she had to lift him up so he could sit back in a reclining chair. Initially, he had trouble standing up. There was no adaptive equipment issued. Without her help he would not have been able to perform the ADLs on his own. c. T____ B____, the registered nurse, reviewed the applicant's medical records and on 16 May 2014 she reported that the applicant required daily hands-on assistance from his spouse with bathing and dressing for a period of over 30 days post-operatively. Without the physical assistance of his spouse during this time, the applicant would have been incapable of performing these ADLs. 10. A 30 December 2014 letter from the Office of the Adjutant General, HRC, notified the applicant and his counsel that they were unable to overturn the previous adjudication. The reason is shown as: The documents provided do not indicate the applicant met the standards for loss of ADLs for 30 or more days. Specifically, documents dated 1 April 2013, 25 days after the applicant's surgery, state he was "in general, feeling well without any specific complaints" and the symptoms prior to surgery had disappeared. His medical provider discharged him to his unit and he was released without limitations. On 2 April 2014, through telephonic contact with his case manager, the applicant stated that his pain level was 0 of 10 and he had not taken pain medication for more than a week. After a thorough review of the applicant's record, no documentation was found that states or suggests a loss of ADLs for any period. 11. On 7 May 2013, the applicant was released from active duty due to completion of required service. 12. Public Law 109-13, signed by the President on 11 May 2005, established the TSGLI program. The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. TSGLI provides between $25,000 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. A qualifying traumatic injury is an injury or loss caused by a traumatic event or a condition whose cause can be directly linked to a traumatic event. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. a. Part I loss includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, and facial reconstruction. b. Part II loss includes traumatic injuries resulting in the inability to perform at least two ADLs for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injuries resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more (emphasis added). ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. DISCUSSION AND CONCLUSIONS: 1. The evidence clearly shows the applicant suffered a traumatic injury. 2. His initial application for TSGLI was reconsidered and denied on 31 March 2014. An appeal was denied on 30 December 2014. His requests were denied because the evidence did not indicate his injury rendered him incapable of performing the ADLs of bathing, dressing, toileting, or transferring for 30 days or greater. 3. The evidence shows the applicant's wife assisted him with his ADLs during his recovery period. It does not show he was completely dependent on someone else to perform ADLs. 4. The guidance governing the TSGLI program states that TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more. 5. The applicant has not provided sufficient documentation to support his contention that his TSGLI claims were improperly disallowed. Neither the available records nor the medical documentation provided establish a basis for granting his request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X ______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120022988 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001679 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1